Citation Nr: 0822768
Decision Date: 07/08/08 Archive Date: 07/17/08
DOCKET NO. 06-19 916 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
ATTORNEY FOR THE BOARD
D. Johnson, Associate Counsel
INTRODUCTION
The veteran had periods of active duty from May 1992 to May
1995 and October 1997 to February 2004.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from an October 2004 decision rendered by the
Winston-Salem, North Carolina Regional Office (RO) of the
Department of Veterans Affairs (VA), which denied a claim of
service connection for post-traumatic stress disorder (PTSD).
Review of the record reveals that in July 2007, the veteran
revoked his Power of Attorney (POA) in favor of the North
Carolina Division of Veteran Affairs (NCDVA) and indicated
that he would represent himself with respect to the pending
claims. As no current POA is associated with the claims
file, the appellant is now unrepresented.
FINDING OF FACT
The veteran has a current diagnosis of PTSD that is
associated with a stressor during his period of active
military service, for which there is credible supporting
evidence.
CONCLUSION OF LAW
Resolving all reasonable doubt in the veteran's favor, PTSD
was incurred in active service. 38 U.S.C.A. §§ 1110, 1154,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), and
4.125 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Preliminary Matters
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at
38 C.F.R. § 3.159, amended VA's duties to notify and assist a
claimant in developing the information and evidence necessary
to substantiate a claim. The Board has considered this
legislation and its impact on the veteran's case. Given the
entirely favorable action below, however, no discussion of
the VCAA is required at this point. Any VA deficiency in
meeting the duties to notify or assist has not resulted in
prejudicial error.
Analysis
Service connection will be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110.
Service connection requires competent evidence showing: (1)
the existence of a present disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004);
see also Caluza v. Brown, 7 Vet. App. 498 (1995).
Service connection may also be granted for a disease first
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2007).
In order for a claim for service connection for PTSD to be
successful, there must be: (1) medical evidence diagnosing
the condition in accordance with 38 C.F.R. § 4.125(a); (2) a
link, established by medical evidence, between the current
symptoms and an in-service stressor; and (3) credible
supporting evidence that the claimed in-service stressor
occurred. 38 C.F.R. § 3.304(f) (2007).
The evidence necessary to establish the occurrence of a
recognizable stressor during service to support a diagnosis
of PTSD will vary depending upon whether the veteran
"engaged in combat with the enemy." See 38 U.S.C.A. §
1154(b) (West 2002); Cohen v. Brown, 10 Vet. App. 128 (1997);
Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); 38 C.F.R. §
3.304(f) (2007). Participation in combat, a determination
that is to be made on a case-by-case basis, requires that the
veteran have personally participated in events constituting
an actual fight or encounter with a military foe or hostile
unit or instrumentality. See VAOPGCPREC 12-99 (1999).
If VA determines that the veteran engaged in combat with the
enemy and his alleged stressor is combat-related, then his
lay testimony or statement is accepted as conclusive evidence
of the stressor's occurrence and no further development or
corroborative evidence is required, provided that such
testimony is found to be consistent with circumstances,
conditions, or hardships of service. See 38 U.S.C.A. §
1154(b); Cohen, at 146-47; Zarycki, at 98; 38 C.F.R. §
3.304(f).
If the veteran did not engage in combat with the enemy, or
the claimed stressor is not related to combat, the veteran's
lay testimony alone will not be enough to establish the
occurrence of the alleged stressor. See Moreau v. Brown, 9
Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App.
163, 166 (1996). In such cases, the record must contain
service records or other corroborative evidence that
substantiates or verifies the veteran's statements as to the
occurrence of the claimed stressor. See West (Carlton) v.
Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown at 98.
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
The veteran contends that his PTSD is based on combat-related
stressors that occurred during his service with Operation
Iraqi Freedom. These stressors include 1) having to endure
constant enemy fire and attacks, and 2) an ambush that
occurred in either April or May of 2003, during which his
convoy was ambushed and one of the vehicles in close
proximity was hit by a rocket propelled grenade (RPG). There
were no casualties from that particular incident.
After a review of the evidence of record, the Board finds
that, with resolution of doubt in the veteran's favor, the
criteria for service connection for PTSD have been met. In
reaching the foregoing determination, the Board observes that
an October 2004 private medical treatment report, authored by
J.C.L., M.D., contains a diagnosis of PTSD that has been
attributed to an in-service combat stressor, namely the
veteran's unit having sustained constant enemy fire while
stationed in Iraq. In addition, VA outpatient treatment
records reflect diagnoses of PTSD, apparently based upon the
veteran's report of having to endure constant enemy attacks
and his report of witnessing a truck in his convoy (and in
close proximity to his vehicle) being impacted by an incoming
RPG. Two of the three elements for service connection are
thus satisfied.
The remaining question is whether there is credible
supporting evidence of the occurrence of an in-service
stressor event.
The veteran's service personnel records show that he served
in Iraq from February 28, 2003 to August 24, 2003. His
military occupational specialty (MOS) was 88M20, Motor
Transport Operator assigned to the 51st Transportation
Company. He is noted to have received the Global War on
Terrorism Award. There are, however no specific references
to combat in the veteran's service personnel records. The
veteran did not earn any decorations, medals, badges,
ribbons, or awards indicative of participation in combat.
The veteran's service personnel records do not further
indicate that he engaged in combat with the enemy, and for
these reasons, the Board concludes that the veteran is not a
combat veteran as defined by regulation. Accordingly, the
Board must turn to the veteran's service medical records or
other corroborative evidence to substantiate or verify the
veteran's claimed stressors.
Service medical records are devoid of any subjective
complaints, clinical findings, or diagnoses of, any
psychiatric pathology. The report of an October 2003 Report
of Medical Examination reveals that the veteran did not
receive a psychiatric evaluation upon separation.
Notwithstanding the lack of any evidence of psychiatric
treatment during service and the lack of any evidence in the
service medical records and personnel records to verify the
reported in-service stressor events, evidence has been
received that, at least to some degree, supports the
veteran's claim. In response to VA inquiry regarding the
veteran's stressor events, the United States Army and Joint
Services Records Research Center (JSRRC) (formerly, the
Center for Unit Records Research (CURR)) indicated that they
were unable to verify the veteran's alleged stressor
involving the RPG attack on his convoy in April 2003, due to
the limited information concerning the veteran's unit or its
higher headquarters. Information concerning the activities
of the 181st Transportation Battalion and its attached units,
including the 51st Transportation Company, during Operation
Iraqi Freedom, from March 2003 to November 2003 was obtained
from the 3rd Corps Command website.
The 181st Transportation Battalion was noted to have
performed in a historic and exceptionally valiant manner in
support of Operation Iraqi Freedom. They provided motor
transport during intense combat operations. JSRRC also
indicated that the 181st Transportation Battalion provided
motor transportation assistance, and transported and supplied
petroleum fuel and all classes of supplies, often in
extremely hazardous terrain, both physically and under enemy
action. The 181st Trans BN integrated 20 transportation
companies, relocated the battalion headquarters seven times,
and defended against numerous enemy small arms, rocket
propelled grenades, mortars and improvised explosives
attacks. These soldiers endured the brutal heat of the Iraqi
summer, and always got the job done despite 160-degree
temperatures inside their cabs, constant enemy attacks, and
minimal repair part support. All told, they repelled 69
enemy attacks, of which 18 were Improvised Explosive Devices
and 31 were small arms engagements resulting in the award of
17 Purple Hearts for combat injuries.
In addition to the information provided by JSRRC, the veteran
submitted a lay statement from an individual named V.T., who
stated that he served with the veteran during Operation Iraqi
Freedom. V.T. described that the veteran was his assistant
driver the night that the RPG allegedly hit a truck in their
convoy. He stated that the vehicle immediately to their rear
took a hit on the passenger side, and in response he
"quickly sped out of the kill zone." About three miles
away, their convoy commander and two gun trucks went back to
retrieve the truck that was hit. There were no casualties.
V.T. also wrote that during Operation Iraqi Freedom, they
were awakened on a nightly basis due to the Iraqi's firing
artillery rounds on their base camp. Finally, V.T. wrote
that while their convoy was driving down the interstate he
and the veteran came upon the remains of a "battle" with
still-burning tanks, debris, and cars with bodies still
inside.
The official information from JSRRC, supplemented by the lay
statement from V.T., provides credible supporting evidence of
at least one stressor which was the basis of the diagnosis of
PTSD. Credible supporting evidence need not corroborate
every detail of a claimed stressor. Suozzi v. Brown, 10 Vet.
App. 307, 311 (1997). The records need only imply the
veteran's participation (e.g., to not controvert the
veteran's assertion that he was present when the events the
records establish that his unit experienced occurred).
Pentecost v. Principi, 16 Vet. App. 124, 128-9 (2002). In
this case, the evidence of record shows that from March 2003
to November 2003, the veteran's unit, the 51st Transportation
Company, was attached to the larger 181 Transportation
Battalion which is confirmed to have sustained constant enemy
attacks including from use of numerous small enemy small
arms, rocket propelled grenades, mortar and improvised
explosive attacks, that resulted in at least 17 awards for
Purple Hearts for combat injuries. Thus, the JSRRC's report
(along with additional corroboration from V.T.) is sufficient
corroboration of the claimed stressful event of having to
endure near-constant enemy fire/attacks. This satisfies the
corroboration element of the veteran's PTSD claim.
In addition, both a VA examiner and a private psychiatrist
have linked the veteran's current diagnosis of PTSD to the
inservice events involving the veteran enduring near-constant
incoming enemy fire attacks during Operation Iraqi Freedom.
In short, the Board finds that the veteran has a current
diagnosis of PTSD that is associated with a reported stressor
(namely near constant enemy attacks/fire sustained by his
unit), which has been substantially verified as having
occurred during his period of active military service in
Iraq.
Resolving any doubt in the veteran's favor, the Board finds
that each of the elements required for entitlement to service
connection has been satisfied. See 38 C.F.R. § 3.304(f). As
such, service connection for PTSD is warranted.
ORDER
Service connection for PTSD is granted, subject to the
payment of monetary benefits.
____________________________________________
Dennis F. Chiappetta
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs